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A TRACT ON DUELLING: WHEREIN The Opinions of ſome of the moſt celebrated Writers ON CROWN LAW ARE EXAMINED AND CORRECTED Either by the Authority of the ſame Writers, declared in contradictory Sentiments on the ſame Subject collated from other Parts of their Works, Or, by the ſolemn Deciſions of more ancient Writers of (at leaſt) equal Authority; in order to aſcertain the due Diſtinction between MANSLAUGHTER AND MURDER.

By GRANVILLE SHARP.

LONDON: (FIRST PRINTED IN 1773) SECOND EDITION WITH ADDITIONS PRINTED FOR B. WHITE AND SON, FLEET-STREET; AND C. DILLY, IN THE POULTRY. MDCCXC.

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Whoſo ſheddeth Man's blood, by Man ſhall his blood be ſhed: for in the image of God made he Man. (Gen. ix. 6.) For blood it defileth the land. (Num. xxxv. 33) There cannot, therefore, be any legal Prerogative to pardon wilful Manſlaughter, ‘but only where the King may do it BY HIS OATH,’ that is to ſay, ‘where a Man ſlayeth another in his own defence, or by misfortune. (2 Ed. iii.) To pardon without one or other of theſe two favourable circumſtances would be an act highly diſloyal to GOD and MAN, and even to THE LAND; for ‘THE LAND cannot be cleanſed of the blood that is ſhed therein, but the blood of him that ſhed it. (Num. xxxv. 33.) ‘Caedes manifeſtè numerantur inter ſcelera nullo humano jure expiabilia. (3 Inſt. 47.)

PREFACE.

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THE intention of the following Tract is to prove that the plea of ſudden Anger cannot remove the imputation and guilt of Murder, when a Mortal Wound is wilfully given with a weapon:

That the indulgence allowed by the Courts to voluntary Manſlaughter in Rencounters, and in ſudden Affrays and Duels, is indiſcriminate, and without foundation in Law:

And that impunity in ſuch caſes of voluntary Manſlaughter is one of the principal cauſes of the continuance and preſent increaſe of the baſe and diſgraceful practice of Duelling.

Univerſal Benevolence, including gentleneſs, patience and an unaffected placability in our behaviour, even towards thoſe [iv]men who injure and affront us, is manifeſtly required of all men, who profeſs the true religion; and yet, unhappily for the Chriſtian world, this moſt obvious doctrine of the goſpel of peace, is too commonly either miſunderſtood, or elſe abſolutely rejected, though the temporal as well as the eternal happineſs of mankind, greatly depends upon a conſcientious and proper obſervation of it. For a man cannot be a true Chriſtian without obſerving this doctrine; and yet, ſo generally received is the oppoſite and contradictory doctrine, concerning the neceſſity of revenging every perſonal affront with ſword and piſtol, for the ſake of, what is falſely called, honour, that a true Chriſtian is rarely to be with! Nay, we are fallen into ſuch groſs depravity, that the writer of a late publication on ‘the principles of penal law,’ has ventured to aſſert, (tho' he is in other reſpects, as I am informed, a ſenſible and ingenious young gentleman) that ‘the judge condemns the duelliſt, whilſt [v]he ſcarcely knows how in his own heart to diſapprove his behaviour.’ (p. 224.) So that one would ſuppoſe Chriſtianity to be almoſt entirely extinct amongſt us, if its principles are ſo little regarded, even in our courts of juſtice, where they ought to be held moſt ſacred. My readers, perhaps, will ſtart at ſuch an idea in theſe enlightened days of reformation; but I will even go farther, and venture to aſſert, that the Europeans not only ceaſe to be Chriſtians, but will no longer deſerve the name even of men, if they perſiſt in ſuch a brutal and diabolical contradiction to the moſt indiſpenſible principles of the laws of God and nature: for nothing deſerves to be eſteemed human that is unreaſonable; and the depravity, of which I complain, is not only incompatible with the laws of God, but abſolutely inconſiſtent with common ſenſe.

Let us view the character of the modern man of honour (falſely ſo called) [vi]who thinks it inconſiſtent with his reputation, to paſs over a perſonal affront with that Chriſtian ſubmiſſion, which the goſpel requires of all men, without exception.

Such an one perhaps will alledge, that his honour obliges him, whenever he receives an affront, to call out his adverſary, or to accept his challenge, leſt his courage ſhould be queſtioned; and therefore in ſuch caſe, the one muſt give, and the other take, what is commonly called gentleman-like Satisfaction. But let us examine this perverſion of words. The Satisfaction to both parties is the riſk both of body and ſoul, in the perpetration of a moſt diſhonourable, baſe, and cowardly felony; which cannot, therefore, be gentleman-like, whatever the ſatisfaction of it may be. And 1ſt. It is Felony; becauſe no man can give, or accept, a challenge, without being guilty of Wilful Murder, if he kills his antagoniſt; which I hope is proved in the courſe of the [vii]following tract. 2ndly. It is diſhonourable, becauſe it is an open violation of the indiſpenſible principles enjoined in the two great commandments of the ſupreme Law, viz. the love of God, and the love of our neighbour: for, in this reſpect, the offender is upon the ſame footing as culprits for burglary, theft, or any other felony; the not having the fear of God before his eyes, being equally applicable to all of them; and the common law of England eſteems no man qualified to be a member of ſociety, who wants this principle. The act is therefore highly diſhonourable; and to uſe a ſtill more humiliating term of the ſame import, I muſt obſerve—3dly, that it is alſo baſe; becauſe it affords the moſt apparent proof of a little Soul1; being, in reality, a brutal revenge; [viii] brutal becauſe unreaſonable; (for how can Honour be vindicated or retrieved by the commiſſion of a notorious Felony?) and what is unreaſonable, muſt be diſgraceful to human nature, and therefore is truly baſe.

And laſtly, it is cowardly (that is, when it cannot be imputed to Ignorance or Folly) becauſe a man ſubmits to it contrary to the light of his own reaſon, for fear his courage ſhould be called in queſtion; and yet he has not courage enough to withſtand the barbarous prejudices of a depraved world, leſt he ſhould ſuffer ſome temporal inconveniencies: and the ſlaviſh Fear which he entertains of theſe (for cowards always dread the preſent evil moſt) deprives him of that reaſonable fear, which he ought to entertain of God's judgment, becauſe he thinks it at a diſtance, though, he knows, it muſt inevitably follow!—I condemn no man in particular; God forbid! I ſpeak of the queſtion [ix]only in general: inveterate prejudices and cuſtoms may perhaps afford ſome excuſe in particular caſes to ſome individuals, who have ignorantly yielded thereto: but as ignorance is diſgraceful to humanity, I ſincerely wiſh that all perſons may enter into as careful an examination of this queſtion as I have done, by which they will not only be enabled to avoid a repetition of their crime, but alſo be prevented from attempting to defend what is paſt, and thereby afford the beſt proof of an ingenuous and honourable heart.

This abominable practice of duelling, which of late years has increaſed to a moſt alarming degree, may chiefly be attributed (I humbly conceive) to the improper indulgence which our Engliſh courts of juſtice, for about two centuries back, have ſhewn to perſons convicted of killing in ſudden affrays and rencounters, through a falſe idea of mercy due to human failty, in caſes [x]of ſudden provocation; without preſerving the proper diſtinction of thoſe caſes wherein homicide, in ſudden anger, is really excuſable by the laws of God, and of this kingdom; and the improper precedents, which have ariſen from this indiſcriminate and corrupt practice, have ſo miſled the more modern writers on Crown Law, that even the greateſt and moſt reſpectable of them have been unhappily induced to admit doctrines on the ſubject of Manſlaughter, which are abſolutely incompatible with the proper and neceſſary diſtinctions to be obſerved between wilful murder and manſlaughter, which they themſelves have laid down in other parts of their works: and it is on the authority of theſe juſt diſtinctions, with the neceſſary conſequences ariſing therefrom, (and not on my own preſumption) that this cenſure is founded; which the following tract I hope will clearly demonſtrate.

[xi]But as my readers might ſeem to give too much credit to an inconſiderable perſon like myſelf, were they, (without a previous intimation of what is propoſed,) to riſque any loſs of time in the peruſal of the arguments and proofs at large, on which my vindication for this attempt depends, I think it my duty to ſtate the ſubject and intention of the tract, as briefly as I can, in this prefatory addreſs, that my readers may, thereby, be enabled to judge, without much loſs of time, whether the matter is of ſufficient conſequence to merit any more of their attention.

I have already mentioned my opinion, that ‘No man can give or accept a challenge to fight with weapons, on any private difference whatever, without being guilty of wilful murder if he kills his antagoniſt.’ And the intention of the following tract is to ſhew, that the writers on Crown Law have no juſt warrant for admitting [xii]the contrary doctrines, which they have laid down concerning ſudden affrays and rencountres, viz. that the voluntary killing of a man on a ſudden provocation is only to be eſteemed Manſlaughter, and, as ſuch, is intitled to the benefit of Clergy. And they have alſo ſuppoſed that an aſſault is a ſufficient provocation to juſtify a voluntary manſlaughter.

Now, certain it is; that ſome allowance ought to be made for heat of blood upon a ſudden provocation, in conſideration of the extreme frailty of human nature; provided that there are no circumſtances of malice in the caſe. As if (for inſtance) a man, in ſudden anger, ſhould ſtrike another, merely with his fiſt, or a ſmall cane, or ſtick, meaning only to correct, and ſhould accidentally kill; this would be, properly, manſlaughter; which, though it is deemed Felony (as the act of ſtriking, or beating another perſon is, in [xiii]itſelf, unlawful), is nevertheleſs pardonable both by the laws of God and man. But when two perſons fight with dangerous weapons, an intention of killing is expreſſed by the weapons; and ſuch intention renders the manſlaughter voluntary, which is the ſame thing as wilful; and conſequently the "malice prepenſed" (which excludes the benefit of clergy) is neceſſarily implied, though the ſudden anger be but a moment before the fatal ſtroke; for "malice prepenſed" is thus defined by Sir Edward Coke, ‘That is (ſays he) voluntary, and of ſet purpoſe, though done upon a ſudden occaſion: for if it be voluntary the law implieth malice. 3 Inſt. c.xiii. p. 62.

And yet the ſame great lawyer in p. 55, ſpeaks of voluntary manſlaughter upon ſome ſudden falling out, as diſtinct from murder; which cannot, in reaſon, be true; for if the killing be voluntary, the evil [xiv]and malicious intention is neceſſarily included in the act, even though the fatal blow be given merely with the hand, or a ſmall cane or ſtick, which I have before mentioned as pardonable caſes, when the killing is not intended; for a voluntary ſtriking, without intention to kill, is indeed pardonable, though death enſues; but a voluntary killing is ſo far from being ſo, that the law, according to Lord Coke's own rule, implieth malice; and, conſequently, the ſame muſt, neceſſarily, be eſteemed Murder, and not merely Manſlaughter; becauſe the neceſſary marks, whereby manſlaughter ought to be diſtinguiſhed, are abſolutely wanting therein: for manſlaughter muſt be "without malice expreſs or implied" (1 Hale 466. 4 Blackſtone 191) "Murder being aggravated" (ſays Lord Hale) ‘with malice preſumed or implied, but manſlaghter not.’ And yet all theſe great and excellent lawyers have unhappily fallen into the ſame error of treating the voluntary branch of [xv]killing, as bare Homicide, or manſlaughter; whereas, all the older writers agree, that killing is pardonable only in caſes of inevitable neceſſity (Bracton, lib. iii. c. 4. p. 120. b. Fleta lib. i. c. 23.) And the learned Judge Staunford ſays ‘That the whole matter conſiſts in the inevitable neceſſity; without which the killing is by no means excuſable 2 (n'eſt aſcun voi excuſable.’ P.C. lib. i. c. 7.)

Now, the abſurd and depraved notions of honour, and gentleman-like ſatisfaction, of which I complain, could not poſſibly exiſt, if every conqueror in a duel, who kills his antagoniſt, was ſure of being hanged up as an ignominious felon, for his own gentleman-like ſatisfaction; and therefore I apprehend, that the diabolical practice of ſettling private differences with ſword and [xvi]piſtol is chiefly to be attributed to the want of puniſhment due to voluntary manſlaughter, through the miſtaken conceſſions of the Writers on Crown Law, and the falſe mercy of Juries, in conſideration of ſudden anger; becauſe impunity foſters vice and depravity; but more eſpecially in caſes of wilful manſlaughter, impunity ought to be eſteemed the bane of ſociety; as the guilt of blood is thereby thrown upon a whole nation or country; for it is a ſupreme law, that ‘whoſo ſheddeth man's blood, by man ſhall his blood be ſhed. Gen. ix. 6. For blood it defileth the Land: and the Land cannot be cleanſed of the Blood that is ſhed therein, but by the Blood of him that ſhed it. (Num. xxxv. 33.) And I hope I have proved by incontrovertable extracts from the laws of God, that the ſaid judgment is inevitably incurred by all voluntary killing, except in the legal proſecution of juſtice, and in the neceſſary defence of our lives and properties; ſo that no [xvii]man has any legal or juſt right to pardon or remit the puniſhment due to murder, or voluntary manſlaughter (which are the ſame crime, and equally unpardonable in this world); for ſuch an indulgence is not only a manifeſt ſin againſt Almighty God, but alſo againſt the community at large, or country; ‘for Blood it defileth the land; and the land cannot be cleanſed of the blood that is ſhed therein, but by the blood of him that ſhed it. Numb. xxxv. 33. This is not a ceremonial law, but a law of morality, founded in divine Juſtice, which muſt, therefore, be ever binding. Now as ‘the Land cannot be cleanſed, &c. but by3[xviii]the blood of him who ſhed it, the Land is ſurely entitled to that expiation, as a matter of indiſpenſible Right, which, when withheld or withdrawn by Charters of Pardon to the guilty, is a manifeſt injury and wrong to the land, i.e. to the whole Country or Kingdom; which opens to us the true ground and reaſon why the Royal Prerogative is ſo ſtrictly and expreſsly limited in this point; for Non poteſt Rex gratiam facere cum injuriâ et damno aliorum: This is an ancient and conſtant rule "of Law." (3 Inſt. p. 236.) and an injury, wrong, or damage is ſurely moſt intolerable, when it is liable to affect the whole Land or Country, by rèndering it obnoxious to the wrath of God!

I may probably be charged with an unpardonable temerity for preſuming to cenſure the writings of ſome of the greateſt and moſt learned men that this nation, perhaps, ever produced; and I am thoroughly ſenſible of [xix]the riſk and ill conſequences to myſelf, in caſe I am miſtaken; but a ſincere perſuaſion of being in the right, (ariſing from a laborious reſearch and careful examination of the moſt celebrated and approved writers on Crown Law) obliges me to prefer, what I conceive to be truth, before the authority of the greateſt names.

And even, though I ſhould not have ſucceeded according to my own conceptions of the ſubject, yet, I truſt, that my impartial readers will pardon any involuntary errors, that they find in the performance, eſpecially if they ſee no cauſe to ſuſpect any want of uprightneſs in the intention of it: and, at all events, I hope, that the attempt may, at leaſt, be conſidered as a proof, that I am not afraid of difficulties and labour, nor of the riſk of perſonal inconveniences, when I undertake any point with a view of ſerving my country, or mankind in general.

GRANVILLE SHARP.

A TRACT ON DUELLING.

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NO MAN can give or accept a challenge to fight with weapons, and kill his antagoniſt (on any private difference whatever) without being guilty of Wilful Murder, ſuch as ought to be excluded from the benefit of clergy. For Wilful Murder is the killing of a man ex malitiâ proecogitatâ a; which malice is either implied or expreſs, b or, as judge Hale calls [2]it, Malice in Law, or ex preſumptione Legis c; and malice muſt neceſſarily be implied when a man wilfully ſtrikes or wounds another with any offenſive weapon whatever, becauſe that is ‘an act that muſt apparently introduce harm’ d, and the intention to do harm makes it murder e; ſo that the allowance which the writers of the two laſt centuries have made for ſudden anger (without preſerving a proper diſtinction of the caſe wherein it really deſerves conſideration) is unjuſt in itſelf, as well as dangerous to ſociety; for few men would entertain ſuch abſurd notions of honour, as to think themſelves obliged to revenge affronts with their ſwords or piſtols, if the riſque of being hanged up as felons and murderers for their own gentlemanlike ſatisfaction, was rendered obvious by [3]juſt and proper deciſions of the Law on this point.

‘In every charge of murder, the fact of killing being firſt proved, all the circumſtances of Accident, Neceſſity, or Infirmity are to be ſatisfactorily proved by the priſoner, unleſs they ariſe out of the evidence produced againſt him: for the law preſumeth the fact to have been founded in malice, until the contrary appeareth.’ Judge Foſter, 255.

The caſes of homicide which are juſtified or excuſed by the above-mentioned circumſtances of Accident and Neceſſity, are well underſtood, and, by many eminent writers, ſufficiently explained under the heads of Misfortune and Self-defence. But with reſpect to thoſe caſes of Homicide, which are attended with [4]circumſtances of infirmity (the third branch of circumſtances mentioned above) the writers on crown law in general have been very indiſcriminate, notwithſtanding that the true diſtinction between Murder and Manſlaughter depends entirely on a clear ſtating of thoſe caſes of infirmity, which really deſerve conſideration and excuſe.

Judge Foſter, indeed, is, for the moſt part, nice and accurate in his diſtinctions; yet he has paid ſo great a regard to the authority of precedents, that he has been unwarily led away (as well as other writers) from the neceſſary concluſions of his own arguments upon this point; I ſhall, nevertheleſs, make uſe of his words as far as they expreſs my own opinion of the ſubject.— ‘Whoever would ſhelter himſelf under the plea of Provocation muſt prove his caſe to the ſatisfaction of the jury. The [5]preſumption of law is againſt him, till that preſumption is repelled by contrary evidence. What degree of Provocation, and under what circumſtances heat of blood, the Furor brevis, will or will not avail the Defendant is now to be conſidered.’

‘Words of Reproach, how grievous ſoever, are not a Provocation ſufficient to free the Party killing from the guilt of murder. Nor are indecent provoking actions or geſtures expreſſive of contempt or reproach, without an aſſault upon the perſon. (p. 290.) But I think myſelf obliged to add that even an aſſault * upon the perſon is NOT ‘a Provocation ſufficient to free the Party killing from the guilt of murder, (though this [6]learned judge ſeems to think otherwiſe. See Sect. iii. p. 295) unleſs all the circumſtances which are neceſſary to render it excuſable by the plea of ſelfdefence can clearly be proved. For if the Killing in a ſudden fray is not ex neceſſitate, (as in Self-defence, or in the lawful Defence of others), it muſt be eſteemed voluntary; and voluntary is the ſame thing as wilful; which neceſſarily includes malice. For Bracton ſays, ‘Crimen non contrahitur niſi Voluntas nocendi intercedat & voluntas et propoſitum diſtinguunt Maleficium, &c. ‘The Guilt is not incurred unleſs the intention of injuring intervenes, for the Intention and Purpoſe (or deſign) marks the Felony (or malicious Deed.)’ Lib. iii. c. 17. So that malice muſt neceſſarily be preſumed, whenever the killing is not ex neceſſitate, eſpecially if the fatal blow be wilfully given with a weapon; for in that caſe a man muſt [7]neceſſarily be ſuppoſed to ſtrike, cunt occidendi animo,—with murderous intent,’ becauſe the Voluntas nocendi is apparent; and, conſequently, the malice, in ſuch a caſe, is not only implied but clearly expreſſed; ſo that the ſudden anger is only a further proof of the malice and "intention to do harm."

Bracton has accurately laid down the proper diſtinction to be obſerved in the plea of an excuſable Neceſſity for killing.

‘Quo caſu diſtinguendum eſt utrum Neceſſitas illa fuit evitabilis vel non. Si autem evitabilis, et evadere poſſet abſque occiſione, tune erit reus homicidii, (and a felonious homicide or manſlaughter, in the days of Bracton, had the ſame meaning that we now apply to Murder). ‘Si autem inevitabilis, quia occidit hominem ſine odii meditatione in metu & dolore [8]animi, ſe et ſua liberando cum aliter’ (mortem propriam Fleta, lib. i. c. 23.) ‘evadere non poſſet, non tenetur ad poenam homicidii*.’ Bract. lib. iii. c. 4. And Staunford remarks, that the neceſſity ought to be ſo great, that it ought to be eſteemed inevitable, or otherwiſe it ſhall not be excuſed; ſo that the whole matter conſiſts (ſays he) in the inevitable neceſſity, without which the killing is by no means excuſable f ſo [9]that the learned Judge Foſter certainly goes too far, when he inſinuates, in the paſſage before cited, ‘that an aſſault upon the perſon’ (without mentioning the neceſſary exception concerning inevitable Neceſſity) ‘is a provocation ſufficient to free the party killing from the guilt of murder.’ For a farther diſtinction (beſides that of inevitable neceſſity) is alſo to be obſerved, which is very accurately laid down, even by judge Foſter himſelf, in p. 291, though the ſame would be uſeleſs, if an aſſault upon the perſon was to be admitted as a ſufficient provocation to the act of killing. ‘It ought to be remembered (ſays he) that in all other caſes of homicide upon ſlight provocationg, if it may be reaſonably [10]collected from the weapon made uſe of, or from any other circumſtance, that the Party intended to kill, or to do ſome great bodily harm, ſuch Homicide will be Murder. The miſchief done is irreparable, and the outrage is conſidered as flowing rather from brutal rage or diabolical malignity, than from human frailty. And it is to human frailty, and to that alone, the Law indulgeth in every caſe of felonious Homicide.’

The firſt inſtance which he gives by way of illuſtration to this doctrine is cited from Judge Hale, vol. i. p. 473. ‘If A. come into the wood of B. and pull his hedges, or cut his wood, and B. beat him, whereof he dies, this is manſlaughter, becauſe, though it was not lawful for A. to cut the wood, it was not lawful for B. to beat him, but either to bring him to a Juſtice [11]of Peace, or puniſh him otherwiſe according to law.’ But here Lord Hale is not ſufficiently diſtinct in ſtating the caſe; becauſe circumſtances are wanting, which are neceſſary for the determination of ſuch a caſe, whether it ought to be eſteemed manſlaughter or murder. The accurate Judge Foſter was ſenſible of this want of neceſſary circumſtances, and therefore adds, ‘But it muſt be underſtood (ſays he) that he beat him, not with a miſchievous intention, but meerly to chaſtiſe him for the treſpaſs, and to deter him from committing the like. For if he had knocked his brains out with a bill or hedgeſtake, or had given him an outrageous beating with an ordinary cudgel beyond the bounds of a ſudden reſentment, whereof he had died, It had been Murder. For theſe circumſtances are ſome of the genuine ſymptoms of the Mala Mens, the heart [12]bent upon miſchief, which, as I have already ſhewn, enter into the true notion of Malice in the legal ſenſe of the word.’ P. 291.

The next inſtance he mentions is that of the parker tying the boy to his horſe's tail. Which was (ſays he) held to be murder. ‘For it was a deliberate act, and ſavoured of cruelty. But the third inſtance, viz. that of Stedman the ſoldier killing a woman with a ſword (which Judge Foſter mentions as a caſe that was held clearly to be no more than manſlaughter) was, moſt certainly, wilful murder: for tho' it appeared that the woman had ſtruck the ſoldier on the face with an iron patten; yet ſhe afterwards fled from him, and he purſuing her, ſtabbed her in the back.

Now if ſuch a caſe of wilful killing is to be eſteemed only manſlaughter, it [13]entirely perverts the juſt arguments already quoted from the ſame author concerning the caſes wherein human frailty deſerves to be indulged! May I not uſe his own words againſt him? That "theſe circumſtances" (the purſuing, and ſtabbing the woman in the back) ‘are ſome of the genuine ſymptoms of the mala mens, the heart bent upon miſchief. Whereas, if he had ſtruck her merely with his fiſt, or with a ſmall ſtick not likely to kill, and had unluckily, and againſt his intention, killed, it had been but manſlaughter. For this is the neceſſary diſtinction for which I contend in all caſes of killing where the ſtriking (not the killing) is voluntary: and I cannot ſo well expreſs my meaning as in the words of Judge Foſter himſelf, though that ſenſible and acute reaſoner is afterwards miſled from the truth of his own doctrine, by [14]paying too much regard (I mean an indiſcriminate regard) to the practice of the Courts, which, in this point, has frequently been erroneous.

In page 290, after the 1ſt ſection (already quoted) concerning the circumſtances, which ‘are not a provocation ſufficient to free the Party Killing from the Guilt of Murder,’ he adds, ‘This rule will, I conceive (ſays he) govern every caſe where the Party Killing upon ſuch provocation maketh uſe of a deadly weapon, or otherwiſe manifeſteth an intention to kill, or to do ſome ſome great bodily harm. But if he had given the other a box on the ear, or had ſtruck him with a ſtick or other weapon not likely to kill, and had unluckily and againſt his intention killed, it had been but manſlaughter. The difference between the caſes is plainly this. In the former, [15] the malitia, the wicked vindictive diſpoſition already mentioned, evidently appeareth: in the latter it is as evidently wanting. The Party, in the firſt tranſport of his paſſion, intended to chaſtiſe for a piece of inſolence which few ſpirits can bear. In this caſe the benignity of the law interpoſeth in favour of human frailty; in the other its juſtice regardeth and puniſheth the apparent malignity of the heart. P. 290 and 291.

Nevertheleſs, the ſame author, in p. 296, endeavours to excuſe killing in ſudden rencounters, without preſerving this neceſſary diſtinction concerning "the uſe of a deadly weapon," and the intention to kill.

‘To what I have offered (ſays he) with regard to ſudden rencounters, let me add, that the blood, already too [16]much heated, kindleth afreſh at every paſs or blow. And in the tumult of the paſſions, in which meer inſtinct ſelf-preſervation, hath no inconſiderable ſhare, the voice of reaſon is not heard. And therefore the law, in condeſcenſion to the infirmities of fleſh and blood, hath extenuated the offence.’ But the Law, in reality, makes no ſuch condeſcenſion, though the Courts of Law have, indeed, indiſcriminately done ſo, and have occaſioned a multitude of bad precedents, wherein wilful murder has been excuſed under the name of manſlaughter; and this unhappy difference between the Law, and the corrupt practice of the Courts, with reſpect to this point, has unwarily led the more modern writers on crown-law into conceſſions, which are abſolutely contradictory to the juſt doctrines laid down in other parts of their excellent works.

[17]When I ſpeak of ſuch reſpectable and juſtly revered authors as Sir Edward Coke, Sir Matthew Hale, Lord Chief Juſtice Holt, &c. No perſon can conceive that I am miſled by perſonal or party prejudice againſt their opinions; and as I have, really, the higheſt eſteem and veneration for their memory, not only as great and learned lawyers, but as true patriots, and, above all, as ſincere Chriſtians, and worthy honeſt men, I ſhould not preſume to controvert any point that has been laid down by ſuch excellent lawyers (ſo accompliſhed as above) was I not armed by their own authority; for no other authority is ſufficiently authentic for the purpoſe of correcting ſuch deſervedly eſteemed writers; though I muſt acknowledge my obligation to the more ancient writers for the diſcovery of the errors of which I complain.

The proper diſtinction to be obſerved [18]between murder and manſlaughter is well laid down by Sir Matthew Hale. "Murder" (ſays he) ‘being aggravated with malice preſumed or implied, but manſlaughter Not.’ 1 Hale's P. C. 466*.

This rule is good and unexceptionable; and therefore it muſt appear, that even Sir Matthew Hale himſelf is miſtaken in the paragraph preceding this quotation, where he ſays that Manſlaughter, or ſimple homicide, is the voluntary killing of another without malice expreſs or implied: for though there may be a voluntary ſtriking without malice, yet I hope I have already proved, that there cannot be a voluntary killing [19]without malice expreſs or implied, except in the legal execution of juſtice, and in the caſe of ſelf-defence and its ſeveral branches, which ſome writers (rather improperly have, indeed, called voluntary a though they proceed from an inevitable neceſſity b Nevertheleſs even the great Sir Edward Coke (and before him the learned Lambard in his Eirenarcha, p. 250.) was guilty of this ſame impropriety of expreſſion. "Some manſlaughters" (ſays Sir Edward Coke, 3 Inſt. cap. viii. p. 55.) be voluntary, and not of malice forethought, upon ſome ſudden falling out. Delinquens per iram provocatus puniri debet mitiusc And this for diſtinction ſake (ſays he) is called manſlaughter. But it is a very indiſcriminate diſtinction (if I may [20]uſe ſuch an expreſſion concerning the writings of ſo great a man,) becauſe the maxim "Delinquens per iram," &c. can only be admitted in caſe where the malice is neither expreſs nor implied: for inſtance, when the Striking is voluntary; but the Killing, or Manſlaughter, is involuntary, and unexpected; as when a man, in ſudden anger, gives an unlucky blow merely with his fiſt, or with a ſmall ſtick, or ſmall ſtone,d (meaning [21]only to correct) which, undeſignedly, occaſions death; for, in ſuch caſes, the [22] malice is not implied; whereas, in a voluntary homicide, even a Malice prepenſed is implied, according to Sir Edward Coke's own definition of that term, viz. "That it is voluntary, and of ſet purpoſe, though it be done upon a Sudden Occaſion: for if it be Voluntary, the law implieth Malice, 3 Inſt. c. xiii. p. 62.—Sir William Blackſtone has alſo fallen into the ſame error in his 4th vol. chap. xiv. p. 191. where he informs us that Manſlaughter is ‘the unlawful killing of another, without malice either expreſs or implied: which may be either voluntarily upon a ſudden heat; or involuntarily, but in the [23]commiſſion of ſome unlawful act. In both of which he is alſo miſtaken; for, with reſpect to the latter, his doctrine cannot be admitted, except in caſes where the circumſtances of the unlawful act amount only to a bare treſpaſs e [24]For I propoſe, in the courſe of this tract, to mention ſeveral allowed caſes, on [25]good authority, wherein even the involuntary or undeſigned killing is not deemed manſlaughter, but murder, when the acts, which occaſioned death, were unlawful: and, with the reſpect to the former, it is a manifeſt inconſiſtency, in all theſe great writers, to rank voluntary killing under the head of manſlaughter, in the modern confined ſenſe of that once general term; becauſe a voluntary killing (except in the caſe of ſelf-defence, [26]through inevitable neceſſity, which ſome writers have, rather improperly, called voluntary f) is certainly the ſame thing as a wilful killing; and either of them muſt be allowed to be the proper definition of what we now underſtand by the term Murder (though the meaning of that word was, originally, very different. See le Mirroir de juſtice, 1642, c. i. ſect. xiii. p. 104. and Lambard's Eirenarcha, c. vii. p. 239.) becauſe, in a voluntary or wilful killing, malice is neceſſarily implied; and, conſequently, voluntary killing is excluded from the favour due to manſlaughter by the rule [27]which theſe learned writers themſelves admit, viz. ‘that manſlaughter is without out malice expreſs or implied; ſo that they are really guilty of a contradiction in terms; becauſe the malice, or intention of killing, is undeniable, if the killing be voluntary g: and therefore, as it is a maxim that ‘Allegans contraria non eſt audiendus’ (Jenk. Cent. fo. 16.) I am compelled to reject the definition of manſlaughter given by theſe learned writers, as far as it is contradictory to to that excellent rule, already cited, for the diſtinction of manſlaughter from murder, which they themſelves admit, viz. that manſlaughter is without malice expreſs or implied.

The errors, of which I complain, were not originally occaſioned by theſe celebrated [28]authors, but by a previous corrupt practice in the courts, which had been introduced by degrees, and at laſt unhappily prevailed, through a falſe idea of mercy and conſideration for ſudden anger; and alſo through the want of preſerving the proper diſtinction of caſes, wherein manſlaughter in ſudden anger is really excuſable. The proper diſtinction to be obſerved is, when the intention of killing is not neceſſarily impiled in the act itſelf; as when a man ſtrikes another merely with his hand, in ſudden anger; or thruſts him ſuddenly from him, whereby he falls and receives a hurt, which occaſions death; in theſe, and ſimilar caſes, the ſtriking, or thruſting is, indeed, voluntary, yet the killing, or manſlaughter, is not ſo, but entirely undeſigned and unexpected; which proper and neceſſary diſtinction the Law Commentators have unhappily neglected. For, though the act of ſtriking [29]or thruſting in anger bears ſome reſemblance to malice, and though ſuch an act is certainly unlawful in itſelf, yet it is reaſonable to make ſome allowance for the frailty of human nature, and the ſudden paſſion of a man that is provoked, whenever a more criminal malice is not neceſſarily impiled in the act itſelf, which occaſions death. And in this lenity we are juſtified by the laws of God, whereby ſuch caſes of manſlaughter in ſudden anger, as I have mentioned, were excuſed without any other penalty than that of baniſhment to a city of refuge. ‘If he thruſt h him ſuddenly [...]without [30] enmity i ( [...] Numb. xxxv. 22.) —the congregation ſhall reſtore him to the city of his refuge, &c.’ v. 25.) Yet the very ſame action, if done in hatred, ( [...] ſee the 20th verſe) and even a blow with the hand in enmity, ( [...] ſee the 21ſt verſe, apparently meaning, when there was an expreſs proof of malice, or intention to kill,) were to be deemed unpardonable; "he ſhall ſurely die."

But, it is remarkable, that theſe are the only two caſes wherein an expreſs proof of malice was required; for in all the examples given in the ſame chapter of killing with a weapon, or with a ſtone wherewith a man may die, (meaning ſuch a ſtone as from its ſhape or ſize might be deemed a ſufficient weapon to occaſion death) there is not the leaſt mention [31]made of malice ( [...] Hatred, or [...] Enmity) which is a ſufficient proof that the ſame were neceſſarily implied from the ſtroke, when given with a weapon; for, in that caſe, the command was peremptory. ‘If he ſmite him with an inſtrument of iron, ſo that he die,’ he is a murderer ( [...] Retſch, or Killer, perhaps from thence the Engliſh word wretch) "the murderer k ‘ſhall [32]ſurely be put to death:’ (v. 16.) the ſame alſo, if he ſmote him with a ſtone wherewith he may die,) or with an hand weapon of wood. But in none of theſe caſes is there the leaſt mention of malice; which was, therefore, moſt certainly implied: and the congregation (to which our trials per Pares are in ſome degree ſimilar) were to judge [33] "according to theſe judgments;" ſee 24th verſe. For the ſlayer was not to die, until he ſtood before the congregation in judgment; ſee 12th verſe: and then, if it did not appear, that the killing was at unawares ( [...] in error) ſee 11th verſe, or, as the ſame meaning is expreſſed in different words in Deut. xix. 4. [...] ignorantly, or without knowledge (agreeable to the example, there laid down, for all other caſes of mere misfortune l) the malice was preſumed [34]from the weapon with which the ſtroke was made; for the hatred [...] and enmity [35] [...] were never enquired after in any caſes where a wilful ſtroke was given with "an inſtrument of iron," or a weapon of wood, or even with "a ſtone (wherewith a man may die)" that is, if it were ſuch a ſtone as was apparently capable of occaſioning the death of a man (ſee Numb. xxxv. 16. to 19.) all which crimes were unpardonable by the law of God; "he ſhall ſurely die."

And the Levitical Law is, certainly, in this point, ſtill binding, even under the diſpenſation of the goſpel; becauſe the reaſon and juſtice of it ſtill ſubſiſts, as in other moral laws.

So that the allowance uſually made for ſudden anger, when the blow is given with a weapon, is ſo far from deſerving the name of "a proper diſtinction in the crime of killing," (as ſome contend) that [36]it is apparently founded in a want of that proper diſtinction, which the laws of God and reaſon require, concerning caſes of manſlaughter, wherein ſudden anger is really excuſable; which can only be when the killing is not voluntary, or, at leaſt, the intention of killing not apparent; as in the caſes before-mentioned of a man ſtriking another merely with his hand, m or fiſt, in ſudden anger; or the ſudden thruſting n a man down, [37]by which he is hurt in falling, ſo that death unexpectedly enſues. In theſe and ſimilar caſes the malice or the intention of killing is not neceſſarily implied in the action itſelf; and, therefore, if all the other circumſtances are alſo free from premeditated malice and laying in wait, the law has reſerved a reaſonable uſe of an unreaſonable popiſh indulgence, called The Benefit of Clergy, to relieve the undeſigning manſlayer (if the occaſion [38]was not unlawful) from the too great ſeverity of the common law; for in ſuch caſes we may ſafely admit Sir Edward Coke's maxim, ‘Delinquens per iram provocatus puniri debet mitius,’ 3 Inſt. 55.o

But a falſe idea of mercy, and conſideration for ſudden anger unhappily prevailing in the Courts, this lenity was indiſcriminately extended even to caſes where the prepenſed malice was neceſſarily implied by the ſtroke; ſo that the wretch, who ſtabbed his neighbour in brutal anger, eſcaped with impunity, to the ſcandal of public juſtice. The bad effects of this falſe mercy, and injuſtice, became ſo notorious in the reign of King James I. that the legiſlature was obliged to ſeek a remedy; and a ſtatute was then made (1 Jac. I. c. 8.) by which the [39]benefit of clergy was taken away from ‘the offence of mortally ſtabbing another, though done upon ſudden provocation. Judge Blackſtone's Com. b. 4. c. xiv. p. 193. But unfortunately this remedy proved almoſt as indiſcriminate as the abuſe intended to be corrected by it; for it takes no notice of any other crime than that of ſtabbing; as if ſudden anger was not equally criminal, when a man is killed "by throwing a hammer or other weapon;" or by a ſhot with a piſtol. Ibid. p. 194. Whereas, in truth, no new law was wanted: nothing but a better adminiſtration of the old laws before-mentioned; for, in all ſuch furious ſallies of ſudden anger, the malice was neceſſarily implied, or preſumed, from the weapon, as well in the laws of God (which I have already ſhewn) as in the law of nations: —"Ex telo praeſumitur malum conſilium (ſays the learned Grotius) niſi contrarium [40]appareat. p And in his ſecond book, de Jure Belli & Pacis, he remarks, "that either iron, a club, or a ſtone, comes under the denomination of a weapon. Teli autem nomine ferrum, fuſtis, & lapis venit,’ c. i. p. 175.

The reaſon of the ſeverity in the divine law, againſt ſtriking with a weapon, is well expreſſed by Dr. Wells in his paraphraſe on Numbers xxxv. 16 to 19. ‘Foraſmuch (ſays he) as though he might have no malice to him beforehand, yet his ſtriking him with a ſword, or hatchet, &c. ſhews he had an intention to do him miſchief;’ and, as another writer remarks ‘though perhaps he had no formed intention to kill the perſon; yet he ought to have moderated his paſſion, and could not be [41]ignorant that ſuch an inſtrument was capable of inflicting a deadly wound,

And, therefore, when a man is killed with a weapon (except it be by misfortune, or in ſelf-defence q, when the Slayer could retire no further to ſave himſelf without ſtriking; or elſe in ſuch lawful and reaſonable caſes, wherein a man is not obliged to give back; as in the caſe of a peace officerr who is aſſaulted [42]in his duty; or when any other man endeavours to keep the peaces or to ſave another perſon from violence and oppreſſiont; [43]or a womanu in the neceſſary defence of chaſtity; or when any perſon reſiſts the [44]attack of a Robberw) I ſay, excepting theſe, and ſimilar caſes, if a man wilfully [45]ſtrikes another with a weapon in ſudden anger, the deſign of killing is, by [46]"the weapon, rendered expreſs, as I have before obſerved, though the prepenſed malice may, perhaps, more properly (upon a ſudden provocation) be ſaid to be implied; and it, certainly, is implied or preſumed in law, though the ſudden anger was but a moment before the fatal ſtrokex; ſo that, if no proof can be [47]produced by the priſoner, of an inevitable neceſſity, as in ſe defendendo, the act muſt, in reaſon and juſtice, be deemed "wilful murder of malice prepenſed," ſuch as was ſufficiently excluded from the benefit of clergy by two expreſs acts of parliament (23 Hen. VIII.c. i. and 1 Edw. VI.c.xii.) previous to the undiſtinguiſhing act of James I. againſt ſtabbing.

By an act of the 2 Edw. III. it was ordained that a charter of pardon ‘ſhall not be granted, but only where the [48]king may do it by his oath y that is to ſay, where a man ſlayeth another [49]in his own defence, or by misfortune. Now with reſpect to the firſt caſe, viz. [50]"in his own defence," (or ſe defendendo) "all writers, both antient and modern, [51]agree, that the killing of a man muſt [52]bez inevitable, and that the manſtayer muſt be able to prove, that he retired; and that he was obliged, ex neceſſitate, to ſtrike, in order to ſave his own life; a plea which cannot be admitted in favour of a Man, who has accepted a challenge; or who has drawn his ſword, in ſudden anger, merely to revenge an affront.

[53]And with reſpect to the ſecond pardonable caſe, mentioned in the ſaid act of Edw. III. viz. by Misfortune, I muſt obſerve, that there are ſome caſes of homicide that may even be ſaid to happen by misfortune, or without intention, which are, nevertheleſs, deemed Murder. And the ſeverity of the law, in this reſpect, will enable me, by compariſon, to point out, more clearly, the abſurdity and injuſtice of excuſing homicide, in conſideration of ſudden anger, when the mortal ſtroke is given with a weapon in rencounters.

The caſes of Misfortune or Accident, which are deemed Murder, are thoſe wherein the act, which undeſignedly occaſions death, is in itſelf unlawful aa. [54] ‘If the act be unlawful (ſays Lord Coke) it is murder. As if A. meaning to ſteal a deer in the park of B. ſhooteth at the deer, and by the glance of the arrow killeth a boy that is hidden in a buſh; this is murder, for that the act was unlawful, although A. had no intent to hurt the boy, nor knew not of him.’ 3 Inſt. 56. Lord Chief Juſtice Holt, indeed, ſays it is but manſlaughter; in which he is miſtakenbb. (See his Edition of Kelyng. Rex verſus Plummer, 117.) But whether this be deemed murder or manſlaughter, the killing is merely accidental, or by miſfortune; and, therefore, is certainly a much leſs crime than that of aiming at, [55]and ſtriking a man with a weapon, or ſhooting at him in ſudden anger, howſoever great the previous affront may have been. For, in the former caſe, though the ſhooting at a deer belonging to another perſon is both unlawful, and voluntary, yet the manſlaughter, which it accidentally occaſions, is involuntary, and without intention; whereas in the voluntary aiming, and ſhooting at a man, the act itſelf is not only unlawful, but implies malice; or rather, I may ſay, the malice is expreſſed by the act; and the ſudden anger is ſo far from being an excuſe, that it is, abſolutely, a further proof of the malice and intention of killing. The malice was alſo implied in the caſe of the Lord Dacres, though his Lordſhip was not half ſo criminal in his unlawful hunting, as the paſſionate man who ſtrikes with a weapon. See how the caſe is mentioned by Lord Chief Juſtice Kelyng, (Rep. p. 87. publiſhed by Judge Holt.)

[56] ‘The Lord Dacres and Manſell, and others in his company came unlawfully to hunt in a foreſt cc, and being reſiſted, one of the company, when the Lord Dacres was a great way off, and not preſent, killed a man; judged murder in him and all the reſt, and the Lord Dacres was hanged.

Lord Chief Juſtice Holt ſuppoſes a caſe in his Rep. of Rex verſus Plummer, p. 117. in the ſame book, which is in ſome degree ſimilar. ‘So (ſays he) if [57]two men have a deſign to ſteal a hen, and the one ſhoots at the hen for that purpoſe, and a man be killed, it is murder in both, becauſe the deſign was felonious. See alſo the laſt paragraph of p. 56.3 Inſt. concerning the ſhooting at a tame fowl, of which this caſe, ſuppoſed by Judge Holt, is an explanation. But ſurely the deſign muſt be much more felonious when a man wilfully ſtrikes his neighbour with a weapon in ſudden anger; becauſe this muſt neceſſarily be allowed to be an act ‘committed felleo animo, with a fell, furious, and miſchievous mind and intent, which is Lambard's definition of felony, c. vii. p. 224.

The implication of malice in the owner of a beaſt that kills a man, after warning given, will alſo further illuſtrate what has been ſaid; for though mere careleſſneſs or inconſideration might occaſion [58]his neglect, ſo that the accident may, in ſome degree, be eſteemed a misfortune, yet the law implies malice; ‘for if one keep a maſtiff dog (ſays Sir James Aſtry, in his charge to grand juries, p. 18.) that is uſed to bite people near the common highway; or bull or beaſt, that hath hurt any one (after notice) they kill any one, that will be murder in the Owner, although not preſent when the fact was done; and yet in this, and the other precedent caſes, here is no expreſs malice to be proved, but what the law conſtrues to be ſo:’ this is agreeable to the doctrine of Judge Staunford, P. C. lib. i. cap. 9. ‘Que ſi home ad un jument que eſt accuſtomé male faire et le Owner ceo bien ſachant, negliga luy, eins ſuffra d'aller a large, et puis le jument tua un home: que ceo eſt felonie in le owner, eo que, per tiel ſufferance: le owner ſemble d'aver volunté [59]a tuer. See alſo Crompton, p. 24. b. and 1 Hawkins, c. xxxi. § 8. And, according to Bracton, the Common Law imputes the death of a man by a beaſt, to any man, who follows, or drives the beaſt at the time of the misfortune;— ‘vel dum inſequitur quis equum vel bovem, et aliquis a bove vel equo percuſſus fuerit, et hujuſmodi hoc imputatur ei. Bract. lib iii. c. iv. p. 120. b. If this law were ſtill enforced, we ſhould not have ſuch continual complaints of accidents in the ſtreets, by cattle, that are enraged, and made mad, through the cruelty of the two-legged brutes who drive them. For the firſt ſtep that ought to be taken, in ſuch caſes, is, to ſeize the drivers; and, nineteen times out of twenty, it will be found, that the poor beaſt will recover it-ſelf (when they are gone) from the exceſs of fear and rage which the Brutality of the hurrying [60]Drivers dd had occaſioned; ſo that it is plain where the guilt is to be imputed: but yet even a brutal driver is not ſo baſe and deteſtable as the man who wilfully ſtrikes with a weapon in ſudden anger. And again, he who aims to ſtrike or ſhoot at a man, and accidentally kills a different perſon (whom perhaps he did not ſee) contrary to his intention (or by misfortune as it were) is, nevertheleſs, deemed guilty of wilful murder, though he had not the leaſt anger, or reſentment, againſt the perſon killed ee. But ſurely the [61]man who actually kills the perſon he aims at, in his anger, is at leaſt as culpable! ſo that if ſudden anger deſerves no lenity in the former caſe, it certainly deſerves none in the latter. Several caſes alſo are mentioned by Sir William Blackſtone, wherein ſudden anger is not excuſable, even though the death may be ſaid to be "by misfortune," as there was no real intention of killing, yet rendered by the circumſtances ‘equivalent to a deliberate act of ſlaughter.’ See Comment. b. iv. chap. xiv. p. 199 and 200. ‘Alſo if even upon a ſudden provocation (ſays he) one beats another in a cruel and unuſual manner, ſo that he dies, though he did not intend his death, yet he is guilty of murder by an expreſs malice; [62]that is, by an expreſs evil deſign, the genuine ſenſe of malitia. As when a park-keeper tied a boy that was ſtealing wood, to a horſe's tail, and dragged him along the park; when a maſter corrected his ſervant with an iron bar, and a ſchoolmaſter ſtamped on his ſcholar's belly; ſo that each of the ſufferers died; theſe were juſtly held to be murders, becauſe the correction being exceſſive, and ſuch as could not proceed but from a bad heart, it was equivalent to a deliberate act of ſlaughter. But is not an expreſs evil deſign as apparent, in the act of ſtriking a man with a weapon, in anger, (be the anger ever ſo ſudden) as it is in theſe caſes where death was not really intended? For ſurely the deſign of killing, is by the weapon rendered expreſsff; |which equally [63]fulfils "the genuine ſenſe of malitia," tho' perhaps, the prepenſed malice may, more properly (upon a ſudden provocation as above) be ſaid to be implied than expreſs. But whether it be expreſs or implied, it undoubtedly conſtitutes murder; for malice is the leading circumſtance which diſtinguiſhes manſlaughter from murder, and therefore an expreſs evil deſign, ſuch as is apparent in the voluntary killing of a man, cannot be admitted under the head of ſimple homicide or manſlaughter, becauſe the neceſſary difference is wanting in the degree of the offence according to the excellent rule before cited from [64]Sir Matthew Hale, viz.— ‘murder being aggravated with malice preſumed or implied; but manſlaughter not, &c.’ 1 Hale, P. C. 466.

I may probably ſeem guilty of much tautology in this little Work; but hope my Readers will excuſe it, in conſideration of the neceſſity I am under, of repeatedly comparing the crimes of ſtriking with a weapon in ſudden Anger, and of voluntary Killing, with ſo many other different caſes, wherein even involuntary and accidental Killing have been ſolemnly adjudged Murder: and I apprehend that the ſeverity of the Law, in the laſtmentioned caſes, muſt ſufficiently demonſtrate ſuch a general abhorrence in our Law to the ſhedding of Human Blood, that we cannot reaſonably ſuppoſe the ſame Law capable of admitting an excuſe for voluntary Manſlaughter on [65]any private difference, howſoever great the provocation. Nevertheleſs, Mr. Hawkins ventures to aſſert a very different doctrine in his Pleas of the Crown, 1 Book c. xxviii. § 24. ‘I ſee no reaſon (ſays he) why a perſon, who without provocation is aſſaulted by another in any place whatſoever, in ſuch a manner as plainly ſhews an intent to murder him, as by diſcharging a Piſtol, or puſhing at him with a drawn Sword, &c. may not juſtify Killing ſuch an Aſſailant, as much as if he had attempted to rob him: for is not he, who attempts to Murder me (ſays he) more injurious than he who barely attempts to rob me? And can it be more juſtifiable to fight for my goods than for my life? And it is not only highly agreeable to reaſon, that a man in ſuch circumſtances may lawfully Kill another, but it ſeems [66]alſo to be confirmed by the general Tenor of our Law-books, &c.

But howſoever ſpecious this argument may appear, I hope I have already proved "by the general Tenor of our Law-books;" that the Juſtifiable Killing of a Man muſt be through an inevitable neceſſity: and therefore what Mr. Hawkins afterwards advances, in his compariſon of ſuch a caſe with Homicide in ſe Defendendo, cannot in the leaſt juſtify either his opinion on that point, or his aſſertion concerning ‘the general Tenor of the Law-books.’

He endeavours to repreſent the Voluntary Killing of a Man as Juſtifiable Homicide, and conſequently he muſt ſuppoſe it a leſs crime than Excuſable Homicide, in ſe Defendendo.

He founds his opinion in the ſuppoſition of "ſome precedent Quarrel" in [67]the latter, "in which" (ſays he) ‘both parties always are, or at leaſt may juſtly be ſuppoſed to have been, in ſome fault, ſo that the neceſſity, to which a Man is at length reduced to kill another, is in ſome meaſure preſumed to be owing to himſelf:’ &c.

But may it not, as "juſtly be ſuppoſed" that the perſon, who Kills without ſuch neceſſity, is alſo "in ſome fault?" Is not the Preſumption of Law againſt him (as I have elſewhere ſhewn) by the bloody FACT, when he cannot prove that he endeavoured, at leaſt, to retreat, in order to avoid unneceſſary bloodſhed? And is not FACT a more ſubſtantial ground for a criminal charge, than any idea that a Court can poſſibly form concerning the Murderous Intentions, which the Killer may attribute to the perſon Killed?

[68]The ſingle circumſtance that the Killer was under no neceſſity of endeavouring to retreat, and avoid the aſſailant, is not only a proof that his own intentions (though he might not be the firſt aggreſſor) were nearly as criminal, as thoſe he attributes to the perſon Killed, but it alſo affords a ſtrong preſumption, that the latter was not very ſtrenuous or ſanguine, either in his attack, or in his ſuppoſed intention to commit murder: ſo that the very pretence, by which Mr. Hawkins endeavours to juſtify ſuch a voluntary Killing, muſt neceſſarily fall to the ground, whenever the Killer is unable to prove, that he endeavoured to avoid the attackgg And tho' the Deceaſed might have had ‘a Weapon Drawn,’ yet that circumſtance affords no poſitive proof of his criminal [69]intention; for he might have thought himſelf obliged to draw in his own defence, through a reciprocal ſuſpicion of his adverſary's criminal intentions: and as he cannot plead his own cauſe, it is reaſonable that the Law ſhould preſume, that he really did draw in his own defence, eſpecially as the circumſtance, that the Killer was under no neceſſity of endeavouring to avoid him, affords a ſufficient Ground for ſuch a preſumption:

And even in caſes where it may be ſuppoſed that the perſon Killed might really have had "an intent to murder," we ought to remember that the Laws of England do not puniſh men merely for their "criminal intentions" without ſome fact! and, therefore, it would be highly abſurd to ſuppoſe, that the Law, without ſome apparent neceſſity, would entruſt every individual, indiſcriminately, [70]with a ſupreme Authority, which it denies even to the Higheſt and moſt ſolemn Courts of Juſtice; I mean an Authority to inflict capital puniſhment without a previous Trial per pares; and that merely for "a Criminal Intention;" which, in many caſes, might as eaſily, (through fear, paſſion, or violent prejudice) be miſtaken, or imaginary, as be real!

And therefore an Aſſault upon the Perſon is not (as I have before inſiſted in p. 5. againſt the opinion of Judge Foſter) ‘Provocation ſufficient to free the Party Killing from the Guilt of Murder.’

The caſe of Gentlemen in the Army, nevertheleſs, ſeems peculiarly hard upon ſuch unhappy occaſions. The firſt principle of their profeſſion is Courage; and the World, in general, is too depraved to diſtinguiſh in what caſes a [71]Man of true Courage may retreat with honour from the Aſſault of an Enemy; ſo that Military Men are liable to be unjuſtly deſpiſed, whenever they act reaſonably in caſes either of inſult, or aſſault!

Yet, at the ſame time, it ought to be remembered, that thoſe men who ſubmit to the Slaviſh Yoke of other Men's depraved opinions or unreaſonable cuſtoms (in contradiction to that natural Knowledge of Good and Evil, which they inherit, in common with the reſt of Mankind, from our firſt Parents), cannot juſtly be deemed Men of Honour; and, conſequently, are unworthy of Rank in the honourable Profeſſion of Arms. And though ſuch men may ſupport an outward appearance of Courage in the eye of the world, by daring to violate the Laws of God and Man in private Quarrels, yet that very act affords [72]the moſt manifeſt token of the Want of real and ſteady Courage: for unleſs the ſubmiſſion to that depraved cuſtom can be attributed to inconſideration, or to the want of Knowledge, it muſt neceſſarily be ſuppoſed, that the Duelliſt had not ſufficient Courage to aſſert his natural Right of Acting agreeable to the Dictates of his own reaſon and conſcience; and was unable to face the Terrors of an adverſe Fortune in a good Cauſe; and therefore, like a wretched Coward, he yielded himſelf a priſoner and ſlave to the faſhionable Depravity!

I am far from meaning however to charge all Soldiers with Cowardice that have fought Duels: ſometimes Paſſion and falſe Pride, but more frequently inconſideration, and ignorance of the Laws of God and Man (as I have before hinted) occaſion the baſe ſubmiſſion and conformity to thoſe falſe and unreaſonable [73]notions of Honour, which almoſt univerſally prevail.

Nor do I ſo much blame the Military Gentlemen, for this unnatural depravity, as I do the Profeſſors of the Law; who ought to have ſet them a better example, and yet, have rather contributed to the ignorance of the times, by the many groſs perverſions of our Law, which they have admitted into the Books. Gentlemen of the Army are not obliged, indeed, to acquire a critical knowledge of the Law, but they muſt not forget that they are Men, as well as Soldiers; and that if they do not maintain the Natural Privilege of Men, (viz. that of thinking for themſelves, and acting agreeable to the Dictates of their own Conſcience, as Members of the Community), they are unfit for Britiſh Soldiers, of whom the Law requires an acknowledgement of her ſupremacy.

[74]For the Law will not excuſe an unlawful Act by a Soldier, even though he commits it by the expreſs Command of the higheſt military Authority in the Kingdom: and much leſs is the Soldier obliged to conform himſelf implicitly to the mere opinions and falſe Notions of Honour, which his Superiors may have unfortunately adopted.—Even in publick military Service, or warlike Expeditions by National authority, the Law manifeſtly requires the Soldier to think for himſelf; and to conſider, before he acts in any war, whether the ſame be juſt; for, if it be otherwiſe, the Common Law of this Kingdom will impute to him the Guilt of Murder.

And though the Law does not actually puniſh ſuch general Crimes, as may unfortunately have obtained, at any time, the Sanction of Government, yet the time will certainly come, when all ſuch [75]temporizing military Murderers muſt be reſponſible for the innocent blood that is ſhed in an unjuſt War, if they have rendered themſelves acceſſaries to it by an implicit, and, therefore, criminal obedience to the promoters of it. ‘Item fit Homicidium in Bello, (ſays the learned Bracton) ‘et tunc videndum utrum Bellum ſit juſtum vel injuſtum. Si autem injuſtum, tenebitur occiſor: ſi autem juſtum, ſicut pro defenſione patriae, non tenebitur, niſi hoc fecerit corrupta voluntate et intentione hh

Men of true honour, therefore, at the ſame time that they are ſenſible of their duty as Soldiers and Subjects to their King, muſt be mindful that they are ſubject alſo to the empire of reaſon, and are bound thereby, in common with all mankind, to maintain the dignity and natural freedom of Human Nature: and [76]thoſe Soldiers, who, in addition to their natural reaſon, have a true ſenſe of Religion, will not only be mindful, that they are Soldiers and Subjects to an earthly King, but that they are alſo Soldiers and Subjects to the King of Kings; whoſe Laws and precepts they will, on all occaſions, prefer to every other Command; and will obey the ſame with ſuch a ſteady courage, as may be equal to every adverſity, and undeſerved ſuffering that threatens them.ii

[77]It was this indiſpenſible, this happy diſpoſition, and ſenſe of ſuperior duty, which prevailed even in an unlawful ſtanding Army, that had been raiſed, and was expreſsly deſigned for arbitrary purpoſes, and which, nevertheleſs, contrary to all expectation, exerted itſelf in ſaving this Kingdom, at the Glorious Revolution, from the Political Slavery, which then threatened it, as well as from the more intolerable Tyranny of the Romiſh Religion.

The Soldier, therefore, who has not Courage enough to profeſs, on all occaſions, [78]a ſtrict obedience to the Laws of his Country, according to the dictates of his own reaſon and Conſcience, in preference to every command, and every other opinion whatever, is unworthy of the Britiſh military ſervice; being qualified rather to be inliſted with the ſlaviſh Troops of abſolute Monarchs; or to ſerve in the Black Banditti of the Emperor of Morocco!

But I muſt return once more to the opinions of the Profeſſors of Law‘it is ſaidkk that if he who draws upon another in a ſudden Quarrel, make no paſs at him till his ſword is drawn, and then fight with him, and Kill him, is guilty of Manſlaughter only,’ &c. 1 Hawkins Pleas of the Crown, c.xxxi. § 28. for which he quotes Kelynge 55. [79]61. and 131: but the pretence for this indulgence is as frivolous as the Doctrine is falſe, viz, "becauſe (ſays Mr. Hawkins) ‘that by neglecting the opportunity of Killing the other before he was on his guard, and in a condition to defend himſelf, with like Hazard to both, he ſhewed that his intent was not ſo much to kill, as to combat with the other, in compliance with thoſe common notions of Honour, &c.—But is not "the intent to kill," or to do ſome bodily harm, and certainly, at leaſt, the Riſque of Killing, included in the intention "to Combat" with dangerous weapons? And is it Juſtice? Nay! is it common Senſe to excuſe a Notorious Crime, by the Plea of an intention to commit another Crime almoſt as bad?

I have already ſhewn, by fair compariſon with a variety of caſes, that the crime of wilfully ſtriking or Combating [80]with weapons in ſudden Anger, is a much more unlawful act than many others, wherein even involuntary and accidental Homicide has been ſolemnly adjudged Murder, and has been generally admitted as ſuch by the Sages of our Law in their Reports; and it will therefore be highly diſgraceful to our Law, but more particularly (becauſe deſervedly) to the profeſſors of it, if they ſhould ſtill perſiſt in the unreaſonable and unjuſt practice of puniſhing leſſer Crimes with more ſeverity than the crying Sin of voluntary Manſlaughter, which, as I have already proved in my preface, is abſolutely unpardonable in this World, by the Laws of God!

Glory in the higheſt to GOD;
And on Earth PEACE.
Towards Men GOODWILL.

Appendix A A TABLE of the Authorities and Caſes quoted, or examined in this Book.

[73]
TEXTS.
  • Geneſis ix. 6 preface xvi.
  • Exodus xxi. 13 pages 32.34
  • Numbers xxxv. 33. pref. xvi&xvii.
  • —Do. 20.22 & 25 p. 30
  • —Do 21 p. 31
  • —Do. 11, 12.16 & 24 p. 32, 33
  • —Do. 16. to 19 p. 35 and 40
  • Deuteronomy xix. 4 & 5 p. 33.
AUTHORS and CASES.
  • Sir James Aſtry, p. 58
  • Army,—Caſe of the Gentlemen in the Army conſidered, p. 70 to 78
  • Lord Bacon, p. 47.
  • Henry de Bracton, pref. xv. alſo p. 6, 7.32. 43, 44.59 & 75
  • John Britton (Biſhop of Hereford) p. 32.42 & 43
  • Bythner's Lyra Prophetica p. 29.
  • Sir William Blackſtone, pref. xiv. alſo p. 22, 23.39, 50. & 61
  • [74]Sir Edward Coke, pref. xiii. alſo p. 1.17.19. 20, 21, 22, 23.38.42, 44, 49.51 54 & 57.
  • Judge Croke, p. 21
  • Mr. Richard Crompton (his Edition of Judge Fitzherbert's Juſtice de Peace) p. 1.56. 59&61
  • Sebaſtian Caſtalio, p. 34
  • Sir James Dyer, p. 61
  • Lord Dacre's Caſe, p. 55
  • Fleta, pref. xv. alſo pages 8.24 & 60
  • Sir Anthony Fitzherbert, p. 56.
  • Judge Foſter, p. 3, 4, 5.7, 9.10, 11, 12, 13, 14, 20.23.24.31.53, 46.53.54 & 70
  • Grotius, pref. vii. alſo p. 39 40
  • Andrew Horn (his Mirroir de Juſtice) p. 26
  • Sir Matthew Hale, pref. xiv. alſo p. 1.9.17. 20.28.43, 44, 45, 46, 52, & 64
  • Lord Chief Juſtice Holt, p. 24, 25.36.50. 56.61 & 72.
  • William Hawkins, Eſq. p. 5.25.56.59. 66, 68.78 & 79
  • Theodore Haak, p. 33
  • Judge Jenkins, p. 27
  • Judge Kelyng, p. 56 and 78
  • [75]Mr. William Lambard, p. 1.19.26, 31.52 & 57
  • Laws of Liberty and Property, printed in 12mo. p. 27
  • Mirroir de Juſtice. (See Horn)
  • The Principles of Penal Law, pref. iv.
  • Pleas of the Crown, printed in 1678, 8vo. p. 1, 2 & 50
  • Plowden p. 51.
  • Sir Robert Raymond, p. 22
  • Rowley's Caſe, p. 20
  • Sir William Staunforde, pref. xv. alſo p. 8. 45, 46.49.52 & 58.
  • John Selden, Eſq. p. 34
  • Stedman's Caſe, p. 12
  • Statutes 52 Hen. III. c. 25. p. 18.
  • 2 Edw. III. c. 2. pref. xvii. alſo p. 47 & 48
  • — 10 Edw. III. c. 2. p. 48.
  • — 14 Edw. III. c. 4. p. 32
  • — 13 Ric. II. Stat. 2. c. 1. p. xvii. 48, 49
  • — 16 Ric. II. c. 6. p. 50
  • — 23 Hen. VIII. c. 1. p. 47
  • — 1 Edw. VI. c. 12. p. 47.
  • — 1 Jac. I. c. 8. p. 38 & 47
  • Thomſon and Daws (Caſe) p. 36
  • Thomas Wood, L.L.D. p. 62 & 63
[]
Notes
1.
‘Nec Chriſtiani veteres hoc tantum viderunt, ſed et philoſophi, qui dixerunt puſilli eſſe animi contumeliam ferre non poſſe, ut alibi oſtendimus,’ ſays the learned Grotius, in his 2d book De jure Belli et Pacis, p. 172.
2.
There is but one caſe of voluntary Killing, wherein the plea of ſudden Anger and atrocious provocation may ſeem entitled to ſome indulgence and conſideration: See Note in p. 46.
3
manſlaughter, ſo that even the king himſelf is abſolutely reſtrained from it. See an act of the 2 Edw. III. whereby it is ordained, that a charter of pardon ‘ſhall not be granted, but only where the king may do it by his oath; that is to ſay, where a man ſlayeth another in his own defence, or by misfortune. See alſo a Note in p. 48. on the further limitation of Royal Prerogative by a ſubſequent Statute of 13 Ric. 2. (2 Stat. c. 1.) rendering it obnoxious to the wrath of God!
a
Pleas of the Crown 1678, p. 35. alſo 1 Hal. P. C. 425.
b
Fitzherbert's Juſtice of Peace, p. 21. Lambard's Eirenarcha, c. 7. p. 240. alſo 3 Inſt. c. vii. p. 47.
c
1 Hal. P. C. 451.
d
P. C. 1678, p. 36.
e
Ibid. 36.
*
See my Remarks (in p. [...], &c.) on Mr. Hawkins's aſſertions relating to this point.
*
‘In which caſe it is neceſſary to diſtinguiſh whether that Neceſſity was avoidable or not; for if it was avoidable and might have been evaded without Killing, then he ſhall be guilty of Manſlaughter, (i. e. Murder in thoſe days); ‘but if it was inevitable, for that he killed the man without (any) prepence of hatred, (but) in fear and grief of Mind, in delivering himſelf and his own, when otherwiſe he could not eſcape, he ſhall not,’ (in ſuch caſe) ‘be held (or be liable) to the penalty of Murder.’
f
Nota que la neceſſite doit etre cy graunde; que il doit eſtre exiſtimé inevitable, ou autrement il n'excuſera, &c. eins tout la matier conſiſt in le inevitable neceſſité, ſans quel, le tuer n'eſt aſcun voi excuſable. Staunford, P. C. lib. i. c. 7.
g
But I have already ſhewn that no provocation whatever can juſtify a voluntary or wilful killing.
*
See alſo the Statute 52 Hen. 3. c. 25. made at Marlbridge, A. D. 1267.—Title. ‘What kind of Manſlaughter ſhall be adjudged Murther. Murther from henceforth ſhall not be judged before our juſtices, where it is found misfortune only, but it ſhall take place in ſuch as are ſlain by felony, and not otherwiſe.’
a
Lambard's Eirenarcha 255. Sir Edward Coke's 3 Inſt. p. 55 and 56.
b
See the note in page 4.
c
He who, provoked by anger, offends, ought to be more mildly puniſhed.
d
See judge Foſter's comment on Rowley's caſe, wherein the difference of ſtriking with a dangerous weapon, and with a ſmall ſtick, or cudgel not likely to deſtroy, is well expreſſed, pages 294 and 295. ‘I have always thought Rowley's caſe (ſays he) a very extraordinary one, as it is reported by Coke, from whom Hale cites it. The ſon fights with another boy and is beaten; he runs home to his father all bloody; the father takes a ſtaff, runs three quarters of a mile, and beats the other boy, who dieth of this beating. This is ſaid to have been ruled manſlaughter, becauſe done in ſudden heat and paſſion, (for which he cites 12 Rep. 87. and 1 Hale 453) "Surely" (continues judge Foſter) ‘the provocation was not very grievous. The boy had fought with one who happened to be an overmatch for him, and was worſted; a diſaſter ſlight enough, and very frequent among boys. If upon this provocation the father, after running three quarters of a mile, had ſet his ſtrength againſt the child, had diſpatched him with an bedgeſtake or any other deadly weapon, or by repeated blows with his cudgel, it muſt, in my opinion, have been murder; ſince any of theſe circumſtances would have been a plain indication of the malitia, that miſchievous vindictive motive before explained. But with regard to theſe circumſtances, with what weapon, or to what degree the child was beaten, Coke is totally ſilent. But Croke ſetteth the caſe in a much clearer light, and at the ſame time leadeth his readers into the true grounds of the judgment. His words are, Rowley ſtruck the child with a ſmall cudgel (God-bolt calleth it a rod, meaning, I ſuppoſe, a ſmall wand) of which ſtroke he afterwards died. I think it may be fairly collected from Croke's manner of ſpeaking, that the accident happened by a ſingle ſtroke with a cudgel not likely to deſtroy, and that death did not immediately enſue. The ſtroke was given in heat of blood, and not with any of the circumſtances which import the malitia, the malignity of the heart attending the fact already explained, and therefore Manſlaughter. I obſerve that Lord Raymond layeth great ſtreſs on this circumſtance, That the Stroke was with a Cudgel not likely to Kill.
e
Which he himſelf elſewhere allows.

Judge Foſter in his ſecond diſcourſe of homicide, p. 258. where he treats of involuntary homicide in the commiſſion of an unlawful act, informs us, ‘that if it be done in the proſecution of a felonious intention it will be Murder, but if the intent went no farther than to commit a bare treſpaſs, Manſlaughter, Though I confeſs (ſay he) Lord Coke ſeemeth to think otherwiſe.’ That is, Lord Coke did not even make an allowance for "a bare treſpaſs," but ſeems to have been of opinion, That every caſe of involuntary homicide is to be treated as Murder, whenever the act which occaſions death may be eſteemed unlawful. See 3 Inſt. p. 56. to which judge Foſter refers. But that learned judge could not mean, that he differed in opinion from Lord Coke concerning the firſt caſe there ſtated under the head of unlawful, viz. the unlawful ſhooting at a deer, whereby a boy was killed by the glance of the arrow; becauſe that caſe muſt neceſſarily be eſteemed Murder according to judge Foſter's own rule above-mentioned; for Lord Coke has clearly ſtated a felonious intention, viz. ‘A. meaning to ſteal a deer in the park of B. &c.’ It muſt therefore appear, that he refers only to the 2d caſe, there mentioned, of a man ſhooting at a cock or hen, or any tame fowl of another man's; for a perſon might wantonly ſhoot at another man's pigeons, or poultry, without any intention to ſteal them; which, I conceive, would amount, to no more than a bare treſpaſs in judge Foſter's ſenſe of the word; becauſe ‘voluntas et propoſitum diſtinguunt maleficia; furtum vero non committitur ſine affectu furandi Fleta, lib. i. c. 33. p. 48. Whereas if Lord Coke had added, in the ſuppoſed caſe, that there was an intention to ſteal the tame fowl, Judge Foſter could not, reaſonably, have diſſented from his opinion; becauſe the crime muſt neceſſarily have been adjudged Murder according to his own rule; for the very ſame caſe has been ſo laid down by Lord Chief Juſtice Holt in a very clear manner, (ſee pages 56 and 57 of this tract) in order to explain Lord Coke's aſſertion; though Judge Holt himſelf is, as apparently, miſtaken in his Judgment of the other Caſe wherein the occaſion was an intention to ſteal a Deer, which is, at leaſt, as felonious as the intention of ſtealing a Hen, that is, if the Deer be tame and incloſed in a Park (as ſtated by Lord Coke) by which the property is rendered apparent: but if the caſe had been ſtated that the Deer was in a Foreſt or open chaſe, the offence (without the accident) would be only a Treſpaſs, (See Hawkins P. C. Book i. c. xxxiii. § 26); and the idea of this latter poſition may probably, have occaſioned Lord Holt's miſtake; for this circumſtance would have rendered the accidental Killing of the Boy, only Manſlaughter, agreeable to his opinions. Compare pages 54 and 57, wherein Lord Holt's opinions of theſe two Caſes are mentioned.

f
Lambard's Eirenarcha 255. "The laſt member (ſays he) of voluntarie homicide is where one man killeth another in his own defence, &c." and Sir Edward Coke, ſpeaking of ſelf-defence in 3 Inſt. p. 55 and 56, ſays, "this is voluntary, and yet no felony." Sir Matthew Hale is more accurate; for when he ſpeaks of homicide ex neceſſitate, he informs us ‘that this neceſſity makes the homicide not ſimply voluntary, but mixed, partly voluntary and partly involuntary, and is of two kinds,’ &c. 1 vol. 478.
g
‘And where a man doth any cruel and voluntary act whereby death enſues, it is murder, though done of a ſudden. See a little book dedicated to Lord Bathurſt in 1724, intitled, The Laws of Liberty and Property, p. 67.
h
The thruſting, here mentioned (which ſome writers ſeem to have miſunderſtood) does not mean a thruſt with a ſword or other weapon; for the word [...] has no ſuch meaning, but properly ſignifies a violent thruſting or ſhoving away, as with the hand; or a ſudden driving away, as chaff is drove before the wind, as Bythner remarks, "Proprie dicitur de vento, qui rapta proſequitur." Lyra prophetica, p. 6.
i
Here a proper diſtinction is preſerved between ſudden anger and enmity.
k
The Word Murder was anciently underſtood in the ſame general ſenſe, as the Hebrew [...] to kill; ſo that Judge Foſter is miſtaken when he ſays (p. 307.) that our oldeſt writers made uſe of the term murder in a very narrow limited ſenſe.’ The Senſe was afterwards, indeed, reſtrained to hidden manſlaughter, whereof the author was not known; but in later times it was, ſtill once more, changed to the ſenſe in which it is at preſent underſtood, viz. that of wilful manſlaughter, wherein "malice prepenſed" is either expreſs, or implied. See Lambard 2 Book c.vii. p. 239 and 240. ‘In old time (ſays he) every killing of one man by another, was (of the effect) called murder, becauſe death enſued of it. For (as Poſtellus noteth) of the Hebrew word Moth came the Latine Mors and thereof our elders (the Saxons) called [...] and [...], as we now ſound it. Afterward (about the time of M. Bracton) murder was reſtrained to a ſecret killing only: and therefore he, in the definition of murder ſaieth, that it is occulta occiſio, &c. with whom Britton agreeth alſo. But ſince the ſtatute (14 Edw. III.c. 4. by which the preſentment of Engleſherie was taken away) Murder is taken in a middle degree, neither ſo largely as it firſt was, nor ſo narrowly as it afterward became to be. For Murder is now conſtrued to be, where one man of malice prepenſed killeth another feloniouſly, that liveth within the realme under the protection of the queene, whether it be openly or privilie, and whether the partie ſlayne be Engliſh or alien.’ And then he proceeds to ſhew that the "malice prepenſed" may be either apparent, or implied.
l
‘As when a man goeth into the wood with his neighbour, to hew wood, and his hand fetcheth a ſtroke with the ax to cut down the tree, and the head ſlippeth from the helve, and lighteth upon his neighbour, that he die,’ &c. (Deut. xix. 5.) or as it may, rather, be rendered, the ‘iron glanceth from the tree, [...] and findeth his neighbour, that he die;’ which correſponds, in ſome meaſure, with that leſs explicit caſe mentioned in Exodus xxi. 13. where God is ſaid to deliver, him into his hand, or rather, to make him meet his hand, as Mr. Haak tranſlated it in 1657; as if a man ſhould accidentally come in the way of a ſtroke that was aimed at ſome other object: for ‘as God is the Lord of life and death, whoſe Providence is over all his works, the ſcripture teaches us to aſcribe to him all ſuch events, as in common phraſe, are called accidental. (Dr. Dodd) and ſo Caſtalio tranſlates the paſſage. "In eum fortefortuna incurrerit;" which he further explains in a note as follows: ‘In Hebraeo eſt, Deus ejus manui injecerit. Sed Deus pro fortuna Hebraicè ideo dicitur, quod quae putant homines caſu fieri, utpote quae non praeviderint, ea Dei providentiâ fiunt, cui nihil fortuitum eſſe poteſt. &c.’ The learned Selden (who was moſt deſervedly eſteemed for his knowledge in the laws both of God and men) ſuppoſed alſo that the text in Exodus xxi. 13. might relate to involuntary homicide; and he accordingly refers to it from his firſt diviſion of that head, ‘Prima eſt quando [...] ex errore & ignorantiâ ſimplici atque infortunio, nec tamen ſine culpâ levi ex negligentiâ aliquâ, qualem prudentiores ſeu cordatiores ſugerent, contractâ, omnino interea nolens quis hominem occiderat; juxta illud in lege ſacrâ (Exod. xxi. 13.) Qui non eſt inſidiatus, ſed Deus tradidit illum in manum ejus, ponam tibi locum quo confugiat.’ (1 Tom. Tract. de Jure Naturali & Gentium, cap. ii. de homicidio involuntario, ſeu quod caſu ſactum ac errore, &c.)
m
See a caſe ſuppoſed by Judge Holt in his edition of Kelyng's Reports, 131. Regina verſus Mawgridge. ‘Suppoſe (ſays he) upon provoking language given by B. to A. A. gives B. a box on the ear, or a little blow with a ſtick, which happens to be ſo unlucky that it kills B. who might have ſome impoſthume in his head, or other ailment, which proves the cauſe of his death; this blow, though not juſtiſiable by law, but is a wrong, yet it may be but manſlaughter, becauſe it doth not appear that he deſigned ſuch a miſchief,’
n
See the caſe of Thompſon and Daws, cited by Lord Chief Juſtice Holt, in the caſe Rex verſus Plumer, (Kelyng, p. 115.) ‘Thompſon thruſt away Daws, and threw him down upon an iron in the chimney, which broke one of his ribs, of which he died; this, upon a ſpecial verdict, was held to be only manſlaughter, though the peace was broke, and the perſon ſlain came only to keep the peace; and it is the ſame if he had been conſtable,’ that is, if he did not declare his intention, (as it is afterwards explained) and charge the offending parties, in the king's name to keep the peace. This caſe is properly excuſcable manſlaughter, becauſe it did not appear that the killing was voluntary, though the "thruſting away" was voluntary; and therefore the malice, or intention, was neither expreſs nor implied, as in murder.
o
"He who, provoked by anger, offends, ought to be more mildly puniſhed."
p
‘From the weapon the evil intention is preſumed, unleſs the contrary ſhould appear.’
q
‘Regularly, it is neceſſary that, the perſon, that kills another in his own defence, fly as far as he may to avoid the violence of the aſſault before he turn upon his aſſailant; for though in caſes of hoſtility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in caſes of aſſaults and affrays between ſubjects under the ſame law, the law owns not any ſuch point of honour, becauſe the king and his laws are to be vindices injuriarum, and private perſons are not truſted to take capital revenge one of another.’ 1 Hale, p. 481.
r
‘If a gaoler be aſſaulted by his priſoner, or if the Sheriff or his Miniſter be aſſaulted in the execution of his office, he is not bound to give back to the wall, but if he kill the aſſailant, it is in law adjudged ſedefendendo, though he gave not back to the wall. The like of a conſtable or watchman,’ &c. 1 Hale, p. 481. For which he quotes Co. P. C. p. 56. 9. Co. Rep. 66. b. Machally's caſe.
s
‘Ou il purra dire que il le tua en defendaunt noſtre pees, &c.’ Britton, p. 44. b.
t
‘For it is the duty of every man to interpoſe in ſuch caſes, for preſerving the public peace, and preventing miſchief.’ Foſter, p. 272. for which he refers to Stanf. 13. & 2 Inſt. 52. And in the latter place there are ſeveral cafes mentioned wherein a private perſon may lawfully interfere by warrant in law without writ.—Lord Hale alſo allows, that every man is bound to uſe all poſſible lawful means to prevent a felony, as well as to take the felon, and if he doth not, he is liable to a fine and impriſonment, therefore if B. and C. be at ſtrife, A. a byſtander, is to uſe all lawful means that he may, without hazard of himſelf, to part them, &c.—If A. be travelling, and B. comes to rob him, if C. falls into the company, he may kill B. in deſence of A. and therefore much more, if he come to kill him, and ſuch his intent be apparent; for in ſuch caſe of a felony attempted, as well as of a felony committed, every man is thus far an officer, that, at leaſt, his killing of the attempter in caſe of neceſſity, puts him in the condition of ſe defendendo in defending his neighbour. 1 Hale, p. 484 & 485. ‘Ou il purra dire que tout fiſt il le fait, nequedent ne le fiſt il mye par felonie purpenſe, mes par neceſſite ſoy defendaunt, ou ſa femme, ou ſa meaſon, ou ſa meyne, ou ſon ſeigniour, ou ſa dame de la mort, &c. Britton, p. 44. b.—And again, ‘ei qui juſtè poſſidet, licitum erit cum armis contra pacem venientem ut expellat, cum armis repellere, ut per arma tuitionis et pacis, quae ſunt juſtitiae, repellat injuriam, et vim injuſtam, et arma injuriae: ſed tamen cum talis diſcretionis moderamine, quod injuriam non committat, non enim poterit ſub tali pretextu hominem interficere, vulnerare, vel male tractare, ſi alio modo ſuam tueri poſſit poſſeſſionem. Ei igitur qui vult viribus uti, erit viribus viriliter reſiſtendum cum armis vel ſine, juxta illud. Cum fortis armatus, &c. Bract. l. 4. c. 4. 162. b.
u
‘A woman in defence of her chaſtity may lawfully kill a perſon attempting to commit a rape upon her. The injury intended can never be repaired or forgotten,’ &c. Foſter 274.
w
Thorp dit que cheſcun home peut prender larons, et s'ils ne voilent ſoi render, mes eſtoient al defens ou fuont; in tiel cas il les peut occire ſans blame. Staundford, p. 13, Alſo, ‘If a thief aſſault a true man, either abroad or in his houſe, to rob or kill him, the true man is not bound to give back, but may kill the aſſailant, and it is not felony.’ 1 Hale, p. 481. for which he quotes Co. P. C. p. 56.—But this rule is ſubject to juſt reſtrictions; for even a thief is not to be killed but through neceſſity, "Si alio modo ſuam tueri poſſit poſſeſſionem, &c. See the preceding quotation from Bracton.—Judge Hale, indeed, ſeems to think that a thief may lawfully be killed, if he cannot otherwiſe be taken. ‘If a perſon (ſays he) be indicted of felony, and flies, or being arreſted by warrant or proceſs of law upon ſuch indictment, eſcapes and flies, and will not render himſelf, whereupon the officer or miniſter cannot take him without killing of him, this is not felony,’ &c.

‘But if he may be taken without ſuch ſeverity, it is at leaſt manſlaughter in him that kills him: therefore the jury is to enquire whether it were done of neceſſity or not. 1 Hale 489. for which he cites 3 E. 3. Coron 288.22 Aſſiz. 55. Stamf. P. C. lib. 1. cap. 5. fol. 13, b. But this doctrine requires ſome further reſtriction; for the neceſſity of taking a thief, or retaking a priſoner, or that of executing a civil writ is not ſo great as to juſtify killing when the perſon endeavours to eſcape merely by flight; the Neceſſity can only be founded in his reſiſtance, from which no man is bound to give back: and this will appear by Lord Hale's own words in another place, viz. ‘But if the priſoner makes no reſiſtance, but flies, yet the officer, either for fear that he or ſome other of his party will reſcue the priſoner, ſtrikes the priſoner, whereof he dies, this is murder, for here was no aſſault firſt made by the priſoner, and ſo it cannot be ſe defendendo in the officer.’—And again, ‘If a man be in danger of arreſt by a capias in debt or treſpaſs, and he flies, and the bailiff kills him, it is murder, &c. 1 Hales 481. The ſame point is ſtill more accurately explained by Judge Foſter, chap. 2. p. 271. ‘I rather chooſe to ſay (ſays he) it will be murder or manſlaughter, as circumſtances may vary the caſe. For if the officer in the heat of the purſuit, and merely in order to overtake the defendant, ſhould trip up his heels, or give him a ſtroke with an ordinary cudgel, or other weapon, not likely to kill, and death ſhould unhappily enſue, I cannot think that this will amount to more than manſlaughter, if in ſome caſes even to that offence. The blood was heated in the purſuit, his prey, a lawful prey, juſt within his reach, and no ſignal miſchief was intended. But had he made uſe of a Deadly Weapon, (here is the proper diſtinction for which I contend) ‘it would have amounted to Murder. The miſchievous vindictive ſpirit, the Malitia, I have already explained, which always muſt be collected from circumſtances, determineth the nature of the offence.’

x
I would willingly except from this rule (If I may be allowed to do ſo) that ſudden anger, which of all others, is moſt deſerving of indulgence and privilege, as being incited by the moſt atrocious injury and affront, that one man can poſſibly receive from another; ſo far doth it ſurpaſs in villainy every other act of injuſtice and diſhoneſty; I mean ‘the caſe of a huſband taking the Adulterer in the manner: to this caſe alone (as Lord Bacon informs us) the ancient Roman law reſtrained the privilege of paſſion to that rage and provocation only, (ſays he) ‘it gave way, that it was an homicide (which) was juſtifiable. But for a difference to be made (adds the learned Chancellor) in caſe of killing and deſtroying man upon a fore thought purpoſe (as in the caſe of duelling) between foul and fair, and as it were between ſingle murder and vyed murder; it is but a monſtrous child of this latter age, and there is no ſhadow of it in any law, Divine or Human!
y
This Statute was confirmed and enforced by two ſubſequent ſtatutes of the ſame reign (10 Ed. 3. c. 2. and 14 Ed. 3. c. 15.) in the plaineſt terms that words are capable of expreſſing; yet were they not ſufficient to root up the diſloyal practice of pardoning murderers: for in the following reign, King Richard the II. (as if in preparation to his own deſtruction) paid ſo little regard to theſe juſt and neceſſary laws, that in the parliament of his 13th year, the Commons made grievous complaint ſee 13 R. 2. St. 2.) ‘of the outrageous miſchiefs and damages which have happened to his ſaid realm, for that Treaſons, Murders, and Rapes of Women be commonly done and committed, and the more becauſe charters of pardon have been eaſily granted in ſuch caſes;’ and the ſaid Commons requeſted queſted our Lord the King, that ſuch charters might not be granted. The three former Statutes were then, as they ſtill are, unrepealed, and no ſubſequent Statute had at that time been made, that could poſſibly be conſtrued to affect them, or abate their force, ſo that the King's diſloyalty in granting ſuch prohibited charters was notorious; and his anſwer to the Commons was not leſs diſloyal than his practice, viz. That he will ſave his liberty and regality as his progenitors have done heretofore. Richard, however, conſented to admit ſome conſiderable limitation of his pretended prerogative in pardoning murder. See 2 ſtat. c. 1. whereby it is ordained, that no charter of pardon from henceforth ſhall be allowed FOR MURDER, or for the death of a man ſlain by await, aſſault, or malice prepenſed, Treaſon or Rape of a Woman, unleſs the ſame murder, &c. be ſpecified in the ſame charter. On a ſlight view, the word "UNLESS" may ſeem, by a negative implication, to admit the allowance of a charter of pardon for murder; but Sir Edward Coke has remarked upon it, that the intention of the ſaid act of 13 R. 2. was NOT that the King ſhould grant a pardon for murder, by expreſs name in the charter; but becauſe the whole Parliament conceived, that he would never pardon Murder by ſpecial name for the cauſes aforeſaid, therefore was that proviſion made, which was grounded (ſays he) upon the Law of God, Quicunque effuderit humanum ſanguinem, fundetur ſanguis illius; ad imaginem quippe Dei creatus eſt Homo. NEC ALITER EXPIARI POTEST NISI PER EJUS SANGUINEM qui alterius ſanguinem effuderit. (Gen. 9.6. Num. 35.33.) So that this learned Lawyer really reſolves ‘THE INTENTION OF THE SAID ACT’ into the doctrine of the Divine Law, for which I contend, viz. "that blood" (i. e. wilful murder) cannot be expiated but by the blood of the guilty. And happily the Act ſeems alſo to have been effectual to accompliſh that intention; for the learned Judge Blackſtone, after citing Sir Edward Coke's opinion, that it was ‘NOT THE INTENTION of the Parliament, that the King ſhould ever PARDON MURDER under theſe aggravations &c. adds, "and it is remarkable enough" (ſays he) that there is NO PRECEDENT OF A PARDON in the regiſter for any homicide than that which happens SE DEFENDENDO, or PER INFORTUNIUM.’ And with reſpect to the determination of the Court of K. B. cited by Salkeld 499, that the King may pardon on an indictment of murder, as well as the ſubject may diſcharge an appeal; I obſerve, that the force of the learned Judge Holt's argument for that doctrine, reſts on the repeal (in 16 R. 2. c. 6.) of the reſtrictions, and great difficulties which are put upon thoſe that ſhall be ſuitors for a pardon of murder in this Act of 13 R. 2. which (ſaid he) were found GRIEVOUS TO THE SUBJECT:’ But that worthy and upright Judge would have acted on this point more like himſelf, if he had previouſly examined the nature of the ſuppoſed grievance, whereby he would have known, whether it was really true and juſt, or only fained? For if the alledged "grievance to the ſubject" was only an unjuſt ſuggeſtion, the whole Statute of Repeal, as far as relates to this point is null and void for the want of truth, as well as for being contrary to the 2d foundation of Engliſh law, "for contra veritatem nihil poſſumus:" and again "contraveritatem lex nunquam aliquid permittit". (2 Inſt. 252 Plowden, &c.) But above all, the FATAL END of King Richard II. ſhould warn and deter all future Monarchs from preſuming to aſſert a PREROGATIVE TO PARDON MURDER. The ill-fated Monarch by his ignorance of the nature of Royal Prerogative in a limited or politic government, prepared the way for his own deſtruction, not conſidering that his regality had no foundation but the law; and that his neglect of the latter, did neceſſarily undermine the former, which he afterwards ſeverely experienced when compelled to deliver up both Crown and Regality with a public confeſſion of his own unworthineſs to bear them: And it is remarkable, that the murders which had increaſed through his criminal indulgence, were awefully retalited afterwards in his own blood: for, at laſt, he was himſelf, alſo, moſt cruelly and wickedly murdered, contrary to the laws of God and man, as if the blood which he had unjuſtly refuſed to cleanſe from the land, and expiate by the blood of the guilty, had fatally reſted on his own head!!!
z
"It muſt be inevitable neceſſity." (Pleas of the Crown, 1678, p. 33.) "upon an inevitable cauſe." 3d Inſt. chap. 8. p. 55 and 56.— ‘but care muſt be taken that the reſiſtance does not exceed the bounds of mere defence and prevention; for then the defender would himſelf become an aggreſſor.’ 3 Blackſtone 4—"this is not excuſeable ſe defendendo, ſince there is no abſolute neceſſity,"—&c. 4 Blackſtone 191. ‘Eins tout la matier conſiſt in le inevitable neceſſite, ſans quel le tuer n'eſt Aſcun Voi Excuſable. Staunford, P. C. lib. 1. c. 7.— ‘He muſt flie ſo farre as he may, and till he be letted by ſome wall, hedge, &c. —that his neceſſitie of defence may be eſteemed altogether great and inevitable, &c. Lambard's Eiren. c. 7. p. 256. See note in p. 41.
aa
‘For if the act be unlawful, I mean, if it be Malum in ſe, the caſe will amount to felony, either murder or manſlaughter, as circumſtances may vary the nature of it. If it be done in proſecution of a felonious intention, it will be Murder; but if the intent went no further than to commit a bare treſpaſs, manſlaughter. Judge Foſter, p. 258. ‘Though I confeſs (ſays he) Lord Coke ſeemeth to think otherwiſe.’
bb
See note in ps. 23, 24 and 25, and Judge Holt's own opinion on another caſe quoted in p. 56.
cc
Judge Kelynge was miſtaken in this point: for the Lord Dacres probably would not have been treated with ſuch ſeverity, if the Treſpaſs had been in a Foreſt or open chace; but it was in a Park belonging to Mr. Pelham in Surry (Crompton 25.) ſo that the unlawful Hunting was more than a bare treſpaſs. See note, p 23, 24, and 25. See alſo 1 Hawkins, cap. xxxi. § 46. where another ground for the imputation of Murder, in that caſe, ſeems to be aſſigned, viz. a Reſolution of Divers Perſons to reſiſt all oppoſers in the commiſſion of a breach of the peace; though it be only, as he calls it, a bare breach of the peace.
dd
‘Si quis operam rei dederit illicitae, ut cum quis Boves velociter fugaverit, quorum unus obviando hominem cornu occiderit, fugatori imputabitur, quia diligentiam quam potuit non adhibuit.’ Fleta, lib. i. c. xxiii. p. 34.
ee
Homme ſagitta a un ex malicia praecogitata, et luy miſſe, et tue autre qui eſtoit decoſt, et a qui nad malice, unc' il eſt murder, eo que il ad intent de murder. Crompton's edition of Fitzherbert's Juſtice of Peace, p. 23.— ‘As if a man, ſays Judge Holt, out of malice to A. ſhoots at him to kill him, but miſſes him and kills B. it is no leſs a murder than if he had killed the perſon intended,’ Lord Chief-Juſtice Holt's Rep. of Rex verſus Plummer, in Kelyng's Rep. p. 111. for which he quotes Dyer, p. 128. Cromp. p. 101. Plowden's Com. p. 474. Saunders's caſe, 9 Rep. 91. Agnes Gore's caſe.
ff
‘If one executes his revenge upon a ſudden provocation in ſuch a cruel manner, with a dangerous weapon as ſhews a malicious and deliberate intent to do miſchief, and death enſues, it is expreſs malice from the nature of the fact, and murder.’ Wood's Inſt. 3 Book, p. 608. And this muſt always be the caſe when men preſume to decide their quarrels with dangerous weapons, be quarrels ever ſo ſudden and unpremeditated: for the "malice" is by the weapons, expreſſed, and the "malice prepenſed" is therefore implied. "Ex telo praeſumitur malum conſilium," &c. See p. 39.
gg
I have already made the neceſſary exceptions concerning Civil Officers in the legal Execution of juſtice, &c.
hh
Bracton, Lib. 3. c. 4. de Corona, p. 121.
ii
This doctrine is cenſured by a Critic in the Monthly Review for Jan. 1774, who calls it "a ſtrange Principle!" In an age of Infidelity, indeed, it may, perhaps, be allowed (in one ſenſe) to be "a ſtrange principle"; but then we have the greateſt reaſon to lament the ignorance and depravity of thoſe men who eſteem it ſo in any other ſenſe, than that of being too often neglected and tranſgreſſed! For I truſt that no man, who admits or believes the divine authority of the Holy Scriptures, will doubt the truth of it. If this "ſtrange principle" had not been equally true, the Engliſh nation would long ago have been enſlaved, and even the very ſtanding Army itſelf would, by this time, have been reduced to that abject ſtate of political ſlavery, which diſgraces the ſtanding Armies of unlimited Monarchies, and renders them very truly the "Abomination of Deſolation," and the Belluina Poteſtas, or power of the Beaſt, againſt which the vengeance of the Almighty is denounced in the Holy Scriptures. See a Note on the word command, or imperium in p. 59 of my Tract, on the ‘Means of national Defence by a free Militia.’
kk
This opinion is in the true ſtile of a Tradition, ſuch as thoſe, by which the Jews of old "perverted the Law."
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TextGrid Repository (2020). TEI. 5228 A tract on duelling wherein the opinions of some of the most celebrated writers on crown law are examined and corrected in order to ascertain the due distinction between manslaughter and murder. University of Oxford Text Archive. . https://hdl.handle.net/21.T11991/0000-001A-595D-9